Friday, January 30, 2009
Telling a would-be suicide that he has a perfectly good legal right to commit suicide, and is free to shoot, hang, or cut himself, makes as much moral sense as assuring a pregnant 14-year-old that she has a perfectly good legal right to an abortion, and is free to self-abort with a knitting needle.
Tuesday, January 20, 2009
1. The Right to be Free from Unwanted Treatment
Generally speaking, people have a right to be free from harmful or offensive physical contact, especially unwanted intrusions into their bodies. When someone intentionally causes harmful or offensive contact without consent, the person receiving the unwanted contact may sue for battery. In her concurring opinion in Cruzan v. Director, Missouri Department of Health, Justice O'Connor notes that, in other contexts, bodily intrusions raise due process and Fourth Amendment concerns, suggesting a related constitutional right to be free from unwanted medical treatment. Specifically, she states that
The State's imposition of medical treatment on an unwilling competent adult necessarily involves some form of restraint and intrusion. A seriously ill or dying patient whose wishes are not honored may feel a captive of the machinery required for life-sustaining measures or other medical interventions. Such forced treatment may burden that individual's liberty interests as much as any state coercion. . . . The State's artificial provision of nutrition and hydration implicates identical concerns.
While the majority in Cruzan do not find that there is a constitutional right to surrogate or advance decision making by an incompetent person to refuse treatment, all fifty states and the District of Columbia have enacted laws allowing advance or surrogate decision-making through living wills, also known as medical advance directives.
Medical advance directives are a way for people to specify what treatments they do and do not wish to receive in the event that they become incapacitated. Typically, medical advance directives focus on end-of-life care. A typical provision from an advance directive comes from the California statutory medical advance directive:
I do not want my life to be prolonged if (1) I have an incurable and irreversible condition that will result in my death within a relatively short time, (2) I become unconscious and, to a reasonable degree of medical certainty, I will not regain consciousness, or (3) the likely risks and burdens of treatment would outweigh the expected benefits;
I want my life to be prolonged as long as possible within the limits of generally accepted health care standards.
States generally enforce medical advance directives; for instance, the California Probate Code allows an individual to sue a health care provider who intentionally violates his medical advance directive for $2500 or actual damages, whichever is greater, plus attorney's fees.
Unfortunately, much of the power of a medical advance directive is removed by "conscience" provisions, such as California Probate Code 4734, which provides in part that
A health care provider may decline to comply with an individual health care instruction or health care decision for reasons of conscience.
A conscientious objector must notify the patient and arrange transfer as soon as possible to a health care provider who will comply with the advance directive. Meanwhile, he is to provide "continuing care" to the patient - in many cases, exactly what the patient hoped to avoid by creating an advance directive.
2. Psychiatric Advance Directives and the Americans with Disabilities Act
Psychiatric advance directives contemplate future psychiatric care and specify which treatments a person consents to or refuses. Psychiatric advance directives are much less accepted than ordinary medical advance directives, as forced psychiatric treatment is widely considered to be unquestionably ethical, even if the patient refused it in advance while competent. Even where existent, psychiatric advance directives are typically laughably minimal in scope. A typical psychiatric advance directive provision, published by Protection and Advocacy, Inc. of California, provides in part:
If during my admission or commitment to a mental health treatment facility it is determined that I am engaging in behavior that may make emergency intervention necessary, I prefer the following choices to help me regain control:
- Provide a quiet private place
- Have a staff member of my choice talk with me one-on-one
- Assist me with telephoning a friend or family member
- Allow me to go outside
- Provide me with materials to journal or do artwork
Other common provisions include the refusal of certain medications and the refusal of electroconvulsive therapy.
What I find striking about the above list (aside from its infantilizing nature) is the level of coercion it assumes and accepts as part of treatment ("allow" me to go outside?). Nevertheless, states have often refused to enforce even such minimal provisions.
In 1999, a schizophrenic Vermont woman named Nancy Hargrave executed a psychiatric advance directive refusing "any and all anti-psychotic, neuroleptic, psychotropic or psychoactive medications," and electroconvulsive therapy. She then sued to ensure that her directive would be enforced. The state of Vermont argued that it was free to involuntarily medicate Hargrave in violation of her advance directive because of a state law that allowed for forcible medication of "mentally ill" people who posed a danger to themselves or others - even in non-emergency situations. Hargrave argued that the state policy of refusing to honor the advance directives of people with mental illnesses, but not others, violated the Americans with Disabilities Act. The federal trial court agreed with Hargrave, and the state appealed.
In 2003, the United States Court of Appeal for the Second Circuit ruled that Vermont's discriminatory policy - which applied only to certain mentally ill people - violated the ADA. Hargrave v. State of Vermont, 340 F.3d 27 (2d Cir. 2003). (In 2005, the plaintiffs were granted their attorney's fees.)
It is important to note that this is a very limited victory for psychiatric advance directives. That said, the trial court's position is very promising:
The very nature of a [medical advance directive] is to ensure that individuals, competent at the time of its creation, are protected from unwanted medical interventions at a time when they are no longer competent. For individuals facing physical illness and disability, their ability to preclude certain life saving treatment to which they might be subjected at a later point when they are not competent to voice a decision is protected by a previously executed [directive]. There is no question that at the time a particular medical treatment is at issue, an individual's physical illness might be terminal without the treatment. Thus, a prior decision to forego medical intervention necessary to sustain life is permitted for the physically ill or disabled, even though at the time of the incapacity, rejection of the treatment could be seen as posing a "danger to themselves." In fact, that is the very purpose behind legislation permitting individuals to execute prior health directives such as Vermont's [directive]. While there is no provision in Vermont law to compel an incompetent physically disabled individual to undergo treatment in violation of a [medical advance directive], even if that treatment is needed to save the individual's life, the State would have the Court declare that because a mentally ill individual at a particular point in time poses a danger to herself, her prior wishes to forego medical treatment calculated to abate the danger can be ignored. Hargrave v. State of Vermont, No. 2:99-CV-128 (D. Vt. Jan. 11, 2000). [Bolded emphasis mine; italics in original.]
The Second Circuit likewise focuses on dangerousness to others as the only relevant exception to ADA protection - not danger to oneself - but its language is not nearly as liberty-affirming as that of the trial court.
3. Suicide and the Police Power
An important challenge to the right to die is the idea that the police power of the government applies to the prevention of suicides. Justice Scalia has been a great defender of this idea, as in his concurring opinion in Cruzan. Scalia's position is that not even a competent person has a Constitutional right to be free from bodily interference if that bodily interference is directed toward preventing his suicide. He writes:
It is not even reasonable, much less required by the Constitution, to maintain that, although the State has the right to prevent a person from slashing his wrists, it does not have the power to apply physical force to prevent him from doing so, nor the power, should he succeed, to apply, coercively if necessary, medical measures to stop the flow of blood. The state-run hospital, I am certain, is not liable under 42 U.S.C. § 1983 for violation of constitutional rights, nor the private hospital liable under general tort law, if, in a State where suicide is unlawful, it pumps out the stomach of a person who has intentionally taken an overdose of barbiturates, despite that person's wishes to the contrary.
True to form, Scalia provides no hint of an ethical argument justifying his position; he merely repeatedly refers to the fact that suicide was a felony at common law. He specifically states that, under the Constitution, "the power of the State to prohibit suicide is unquestionable." What is suicide to Justice Scalia? Actually, it includes not only what we would normally consider acts of suicide, but also ordinary advance directives calling for the removal of life support if a person will never regain consciousness.
Scalia is, of course, the same enlightened figure who defended torture because he thought a character on a television show was doing it right. Intellectual giants like Justice Scalia remain on our bench and continue to make decisions that affect the lives - and deaths - of all of us lesser creatures.
Friday, January 16, 2009
Polevoy, identified as "a student at Loyola University Chicago," writes:
Suicide, as historian of religion David Chidester reminds us in Salvation and Suicide, his seminal study of the People's Temple, is frequently a religious act, invested with religious motivations and following a religiously understood logic. The Jewish zealots at Masada, for instance, facing death (or, worse, torture, rape, forced conversion, and slavery) at the hands of the Romans in 70 CE took their own lives as a way of escaping with their religious identity and dignity intact. Likewise, when the utopian community at Jonestown drank poison in 1978, a ruling interpretation among those who participating willingly was that this act of suicide was in protest of "the conditions of an inhumane world." Suicide presented a means of remaining fully human in the face of a society defined by race, class, and gender divisions and, thus, intent on dehumanization. [Emphasis and links mine.]
In response to the suicide of Rene-Thierry Magon de la Villehuchet, we have seen the predictable, safe ruminations on selfishness and mental illness. And yet, with shocking boldness, de la Villehuchet's brother, Bertrand, told the press that his brother's suicide was an "act of honor."
Advocates of suicide censorship abhor any consideration of the idea that suicide might sometimes be honorable or right. Douglas Faneuil, who claims to "work in the field of suicide prevention," writes that "Praising a suicide as honorable may come with an extremely high price: namely, more suicides." He encourages censorship (though you're not supposed to call it censorship, he says, but rather "putting it in context") of suicide coverage and justifies that by clinging to the idea of suicide contagion. (I have previously argued that there is clinical evidence that suicide contagion might not exist, and that even if it does, it does not justify censorship.)
But rather than failing to put suicide "in context," Polevoy is merely describing a genuine aspect of many suicides, including de la Villehuchet's. She writes,
Villehuchet's suicide was a public act, an utterance aimed, surely, to resonate throughout the media and thus voice the outrage and despair of many anonymous investors, in the process focusing public attention on the very real ramifications of this white collar crime.
Not all suicides are idealistic, but certainly some are. Polevoy acknowledges a truth; to insist that all suicides are the product of mental illness, that there is never honor in suicide, is to sacrifice truth for the sake of political correctness - bullshit in the strict Frankfurt sense.
Update: An anonymous commenter points to a note by Nassim Nicholas Taleb (author of The Black Swan) on the suicide of his acquaintance, de la Villehuchet. Note 106, "On Killing Oneself," reads in part:
This is an aristocratic act coming from an aristocratic character: you take your own life when you believe that you failed somewhere -- and the solution is to inflict the ultimate penalty on yourself. It is not the money; but the embarrassment, the shame, the guilt that are hard to bear. Someone callous, indifferent to the harm done to others would have lived comfortably ("it is all about money"). A life of shame is not worth living. Christianity never allowed suicide; the stoics did --it allows a man to get the last word with fate.
Thierry, veuillez recevoir l'expression de mon respect le plus profond. [Emphasis in original.]
Monday, January 12, 2009
A massive study (1,185,727 patient-years) published in January ("Higher-risk periods for suicide among VA patients receiving depression treatment: Prioritizing suicide prevention efforts," M. Valenstein et al., Journal of Affective Disorders, Volume 112, Issues 1-3, January 2009, Pages 50-58) on a military veteran population being treated for depression found that suicide rates were dramatically elevated immediately following a psychiatric hospitalization.
The base suicide rate of the population was found to be 114 per 100,000 person-years. Clearly, the depressed VA patients are at a much higher suicide risk than the general population of the United States, for which the suicide rate is estimated at only 16.7 per 100,000 person-years. But the suicide rate for these depressed veterans shot up to 568 per 100,000 person-years during the 12 weeks following a psychiatric hospitalization - five times the already high base rate for the non-hospitalized depressed veterans, and 34 times that of the overall American suicide rate.
But if hospitalization were actually effective in "treating" suicidality, wouldn't we expect the suicide rate to be quite low after a hospitalization?
One problem with this line of thinking is that we might expect only the most seriously suicidal patients to be hospitalized at all. One hypothesis is that hospitalization is effective in reducing suicidality, and that the suicide rate of hospitalized depressed veterans would have been much higher if they hadn't been hospitalized. No study I am aware of attempts to compare the suicide rates of patients who meet criteria for hospitalization, but who are randomly assigned to be or not to be hospitalized. Given the widespread faith in hospitalization as a suicide treatment mechanism, to conduct such a study would probably be considered a breach of professional ethics toward the non-hospitalized group.
However, in the absence of data from such a study, I think the alternative hypothesis needs to be considered: that hospitalization is so horrible, demeaning, and above all ineffective, that it does nothing to prevent suicides and may actually increase one's resolve in that direction. Far from showing caring and compassion, forced psychiatric hospitalization demonstrates to the patient that he is a prisoner. For a prisoner, there is a clear method of escape. Yes, there are people who claim to have benefited from involuntary psychiatric hospitalization, just as there are people who claim to have benefited from childhood beatings and from those wilderness camps they send bad kids to. But there are also people who have suffered involuntary hospitalization and found it to be a life-changing, demeaning experience. In fact, I think we must be suspect of the "glad it happened" group. The psychological defense mechanism of denial, the discomfort of cognitive dissonance, contribute to people interpreting past events with unwarranted optimism. As long as you can convince yourself that the involuntary hospitalization was good for you, you don't have to admit to yourself what an insult to your dignity was done to you.
Sadly, the authors of the study are using the results to recommend yet more coercive practices. What is really needed is more intensive "treatment" following a hospitalization, they say - or a "firm connection to outpatient services," in the Orwellian words of the study's authors.
For those whose link to the study is gated, here's a Washington Post summary of the study: "With Depression, Vets Face Higher Suicide Risk."
Update: Commenter Jessa continues the discussion on coercion at her site, Made with Awesome.
Update: Zarathustra responds to my arguments here.
Update: Jim adds to the discussion here and here.
Saturday, January 10, 2009
In the case of suicide, hardly anyone - not even myself - is willing to counsel a particular person that suicide would be a good thing for him to do. And yet, I genuinely believe that suicide can be a moral choice that a person may rationally decide is in his best interests, as do many others. Is this belief in conflict with such unwillingness to apply it in particular cases? Is this unwillingness to advise particular people to commit suicide evidence that suicide is wrong?
Visceral feeling is often in conflict with intellectual understanding of moral issues. When a coyote wanders into my neighborhood, I desperately want to (and, honestly, once did) give it a hot dog out of affection and generosity, even though intellectually I know giving it a hot dog is probably not in the coyote's best interests in the long term. In a related case, we often can't help feeding our pets human food, again out of affection, generosity, and perhaps empathy - even though intellectually we know it's not good for them.
Emotional intuition is, I think, a starting point for moral reasoning. But it is not the end of it. And there are some emotional feelings that are so strong that, in terms of inducing action, not even clear intellectual arguments can overcome them. I think, as with coyotes and hot dogs, this is a sort of akrasia. But, in the case of not being willing to counsel in favor of suicide, I think that it is a relatively benign form of akrasia, so long as one does not go around force-feeding or forcibly hospitalizing or lobotomizing or performing involuntary ECT on people, or supporting these coercive practices.
For a person considering suicide, it can be extremely irritating to hear only an anti-suicide message, and to perceive that one's doubts about life's value are not being taken seriously by others. I have often found myself on both sides of this - being irritated, and being the cheery irritator - and I am moved toward greater tolerance toward people who have a hard time taking the right to suicide seriously in any specific case. Still, I have taken a great deal of comfort from #alt.suicide.bus.stop over the years, and I think it is extremely important that a place exists for seriously discussing the possibility of one's suicide without the usual bias. And I think it has to be anonymous, because nonpartisanship is too much to ask of one's friends in the matter of one's suicide.
Monday, January 5, 2009
Zarathustra at Mental Nurse wrote a piece in September about using degrading, humiliating, coercive means to force patients with eating disorders to eat. He is extremely candid about the reality of force feeding, detailing the force-feeding protocol:
The protocol for serving a meal to an eating disorder patient is a no-holds-barred affair. She’s made to come to the table with her hair tied back and wearing short sleeves, wearing no watches or jewellery, so that there’s nowhere to secretly stash food. She’s then made to eat everything - everything - on the plate with a nurse watching her like a hawk. No excuses are tolerated. No “that’s got a bit of gristle on it” or “but that’s just a crumb”. The plate has to be completely cleared. Afterwards she’s made to sit resting for a full hour so she can’t go off and purge or exercise.
If she fails to complete the meal, or doesn’t complete the rest period, then she’s ordered to drink a nutritional supplement milkshake. If she refuses to do that, then she’s restrained while a nasogastric tube is passed up her nose and into her stomach to force-feed her. Nasogastric feeding is so unpleasant that few of the girls have to have it done more than once. As coercive psychiatry goes, you don’t get much more coercive than this. [Emphasis mine.]
At the end of this litany of horrors, though, Zarathustra wonders - if it saves the girl's life, what's so wrong with that?
The short answer is that, for many people, there are things that are more important than life.
I have written in the past that it is sometimes permissible to save a person's life against his will. I propose two criteria for this:
- Because of a condition that clearly destroys the person's ability to act in his own genuine interests, such as an acute confusional state in a person who is otherwise lucid, the person is not acting in his own interests (note that I mean his own interests, according to his own values, not his "best interests" as defined by others); and
- there is substantial evidence that the person, in his lucid state, values his life more than he values being free from the kind of intrusion that would save his life.
I think it was Dr. Maurice Bernstein of the Bioethics Discussion Blog who said that, faced with an anorexic patient who was refusing to eat and would die without intervention, but still said she wanted to live, he would opt to force-feed. This actually accords well with my model of a time when it is appropriate to intervene: when it accords with the patient's ascertainable values. (I am not sure my first prong is met - anorexia nervosa seems to be more of a life-long condition rather than a sudden-onset break with reality. This is the hardest prong to define and apply.)
But if an anorexic patient values her bodily inviolability, her dignity, more than she values her life - then it is morally wrong, and damaging to her as a human being, to stick a nasogastric tube down her throat. There are some things that are more important - to her - than her life. How can it be right to ignore her values and humiliate her in furtherance of protecting her life from damage she herself may do to it?
A similar model may be helpful in determining when it is appropriate to interfere with a suicide. Some people who attempt suicide really want to die, and coercive suicide prevention is a horror that they would rather die than accept (Group 1). Some people who attempt suicide genuinely want to die but fail to be in a lucid state when they make the attempt; they are forcibly "rescued" and treated, and when more lucid are grateful for the indignity of forced treatment (Group 2). And some people who attempt suicide do not really want to die at all - they have bought into what I have termed the dangerous fantasy of rescue, and count on being saved from their suicide attempts through coercive means (Group 3). (In "Attempted Suicide as a Signal," I have articulated the way in which a policy of always interfering with suicides actually harms people who don't wish to die - because it sets up an incentive structure that rewards them for engaging in lethal behavior.)
In my view, it is permissible to interfere with the second group's suicide attempts if the two prongs of my test above are met - the person is experiencing an acute state of mental confusion or delusion (I don't think DSM-IV depression qualifies here), and according to the person's own value system (when lucid), remaining alive is more important than the humiliation and suffering involved in the proposed coercive intervention.
Group 3, suicide attempters who clearly lack a sincere intent to die, seem to me to present the easiest case. Under our current system, rescuing them - following through with the fantasy they have been fed - is the morally correct option. However, as I mentioned above, it would actually be better for them if there were a well-known public policy of not interfering with suicide attempts, because under such a system, they would have no incentive to make a potentially harmful, insincere attempt in the first place.
It is never morally permissible to coerce people in the first group to remain alive.
But, on the bridge or in the ER or on the bathroom floor of the apartment, how do you tell the difference? How can you tell whether the person belongs to Group 1 or Group 2 or Group 3? How do you know whether the bleeding, half-conscious person's values allow for interference with his suicide attempt?
Many people fail to ask this question at all. They assume without question (a) that anyone who would attempt suicide is in a state of mental confusion sufficient to render his actions and judgment valueless, and (b) that everyone places his own life above all other values - that any humiliation or insult to dignity or loss of liberty is worth it if it saves one's life.
I think it is true that many people hold the belief in (b), but I don't think it's controversial to say that not everyone values his own life over all else. If it were true, I think our race would be a race of cowards. But it is not: people are willing to die for their political and religious beliefs, and for other people, demonstrating that one's own life is not the supreme value for everyone. And for some of us, dignity and bodily inviolability are values we hold above even life itself.
But we can, and ethically must distinguish between the two groups (Group 1 above - those who value dignity over life - and Groups 2 and 3, who want to live despite any indignities that might entail). I have previously articulated a proposal for distinguishing between these groups, with two options, as follows:
- Radical option: Cease automatic interference with suicide attempters, and publicize this policy, to destroy the dangerous "fantasy of rescue" that might cause many people who do not genuinely want to die to make a suicide attempt, and
- set up a procedure for medically assisted suicide (a prescription for a lethal dose of, say, barbiturates to a competent adult requester) that would be unlikely to be used by anyone not extremely serious about suicide, and
- allow people who value their lives over any possible indignities to enter contracts while lucid to allow them to be "rescued" or forcibly treated should they become suicidal, refuse to eat, etc., as with medical advance directives;
- Minimal option: or, as an alternative, at a minimum, establish an "opt-out" policy that would allow a competent person to execute a legally enforceable document, revocable only by the person it concerns, that would exempt him from coercive suicide prevention "treatment" and from medical "rescue" in the case of his suicide
Regardless of whether the radical or the minimal option is enacted, the following criteria would apply:
- the suicide procedure (or execution of the opt-out document) could have a waiting period, like gun purchases or marriage or divorce, and even require multiple requests
- requesters, to be competent, must understand the nature of death and be able to articulate a non-delusional reason for wanting to die
- a DSM-IV diagnosis of Major Depressive Disorder would not suffice to render someone incompetent to request suicide assistance
Some things are more important than life. But life is important to many - for some, it is the most important thing. A policy like the one I have outlined would respect everyone's values.
Thanks to mysterious, modest commenter failed poet for inspiring probably the only thinking I've done in weeks, which thinking led to this post.
1. If my neighbor wants to lose weight, and values losing weight, but doesn't have the will power and determination to achieve it, would it be morally right for me to kidnap my neighbor, feed him only health food, and make him run on a treadmill two hours a day? Of course not - unless, perhaps, his values were such that the humiliation of being kidnapped and forced to run on a treadmill was nothing compared to the value of losing weight. He may hate it in the moment - people sometimes feel this way about their hired trainers or physical therapists - but if his deepest, truest value is losing weight, then I think the action is permissible, and he would probably agree. In this way, it all comes down to value - no mental illness/acute mental confusion prong is even necessary. (The only problem comes in judging which of several "selves" is speaking one's true values. And it is tempting for a listener to assume that the "self" that articulates values close to one's own is the true self.)
Thursday, January 1, 2009
In a post by Mr. Ian, the experience of a commenter known as "Squawk" is related: she was subject to coercive psychiatric treatment, was "cured" and came out the other side, but, like me, she does not feel that it was worth it and continues to suffer from feelings of violation:
Was the coercive treatment worth it? Was going through utter hell every day for more than a year worth it? No. I love my life now, I’m not remotely suicidal, and I hope I do good things for the world. But even for everything I have now, the threats and the heavy meds and the tubes and the completely destroying *everything* I was 5 times a day every day day after day for more than a year - no, it wasn’t worth it. Nothing could be worth that. Not my first boyfriend, or getting my degree, or the first time a patient with PMLD recognised me and smiled when she’d only ever done that to her Mum, or being able to help the people I’m now volunteering full-time with who would otherwise have nothing, or eight years of a bloody fantastic life with ups & downs & friends & adventures & fun. Another eighty years, winning 5 Nobel Prizes, and being the first person to walk on Mars wouldn’t be worth going through a severe ED & treatment. Nothing could be. [Emphasis mine.]
I am sorry for her experience and agree wholeheartedly about the after-effects of coercive treatment.
Some people, of course, are forcibly treated and are later glad about it; I suspect that these are people without a strong sense of personal dignity.